Otero & Kasun - [2023] FedCFamC2F 527

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Otero & Kasun [2023] FedCFamC2F 527

File number(s): PAC 4142 of 2021

Judgment of: JUDGE MYERS

Date of judgment: 8 May 2023

Catchwords: FAMILY LAW – parenting proceedings.

Legislation:
Family Law Act 1975 (Cth), ss 60CC, 65DAA(3), 65DAA(5)

Mental Health (Forensic Provisions) Act (NSW) s 32

Cases cited:
A v A: Relocation Approach (2000) FLC 93-035

AMS v AIF [1999] HCA 26; 199 CLR 160; 73 ALJR 927 163 ALR 501; (1999) FLC ¶92–852; 24 Fam LR 756

Wagstaff & Wagstaff [2021] FedCFamC2F 507

Witham v Holloway (1995) 183 CLR 525

Division: Division 2 Family Law

Number of paragraphs: 129

Date of hearing: 2-4 August 2022, 8-9 November 2023

Place: Parramatta

Counsel for the Applicant: Mr Cohen

Solicitor for the Applicant: Gonzalez & Co

Counsel for the Respondent: Mr O’Brien

Solicitor for the Respondent: Rafton Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Carter

Solicitor for the Independent Children's Lawyer: Harb Lawyers
ORDERS

PAC 4142 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR OTERO

Applicant

AND:
MS KASUN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MYERS

DATE OF ORDER:

8 MAY 2023

THE COURT ORDERS THAT:
1.That the mother has sole parental responsibility for the children X born in 2015 and Y born in 2016 (“the children”) and for that purpose:
(a)before the mother makes any major long term decision in respect of the children, the mother will:
(i)provide the father with all relevant information and documentation in relation to the issue;
(ii)inform the father in writing of her proposal for the children, including the reason(s) why she believes the proposal is in the children’s best interest;
(iii)provide the father with any name and contact details as may be relevant; and
(iv)give the father at least seven (7) days to consider the mother’s proposal and respond, before the mother proceeds with her proposal; and
(v)if the father responds within seven (7) days of receipt of the mother’s proposal, the mother will consider the father’s views and advise him of either her acceptance or rejection of the father’s views.

2.That the children live with the mother in City B.
3.Subject to the father’s compliance with Order 6 below, and after completion of 6 months of family therapy with C Family Centre in accordance with order 7 below, the children spend time with the father by agreement and failing agreement as follows:
(a)Commencing the last weekend of the calendar month in which the Court makes these orders, the children spend (6) supervised visits with the father for three (3) hours each with such time to occur on both the Saturday and Sunday of the last weekend of the calendar month and at a place and time to be agreed upon by the parties with such time to occur within a 15 km radius of the Melbourne Central Business District with the cost of such supervision to be shared equally by the parties.
(b)Thereafter, the father spend time with the children in City B once per month from 11:00am Saturday to 5:00pm Sunday for a period of four (4) months.
(c)Thereafter, the children will spend time with the father during the school holiday periods as follows:
(i)in the terms 1, 2 and 3 school holidays, for the second week with the father at his residence as long as such residence is within the Commonwealth of Australia.
(ii)In the first term 4 holiday period after the children have had 4 overnight visits with the father in accordance with Order 3(c) the children spend time with the father for 10 nights as agreed between the parties and if not agreed, for (10) nights commencing on the first Monday of January.
(iii)In the proceeding term 4 holiday periods, the children spend time with the father for the second half of the term 4 school holiday periods.
(iv)For the purposes of these Orders, the parties each share the costs of the children’s flights to and from Sydney for the purposes of the children’s time with the father and changeover on such occasions is to take place at the arrivals gate of Sydney Domestic Airport and/or Melbourne domestic airport.

4.That in order to facilitate the child spending time with the mother in accordance with Order 3 above, the parties shall attend to the following:
(a)Both parties shall follow all reasonable requests and directions given by the nominated supervision service;
(b)The parties be equally responsible for all costs payable to the nominated supervision service including the costs of obtaining contact reports; and
(c)Both parties shall complete and return to the nominated supervision service all intake/enrolment paperwork within seven (7) days of receiving same.

5.Commencing in the first week following the children’s first visit with the father in accordance with Order 3(a) the children shall communicate with the father via Skype/Zoom with the father to initiate the calls as follows:
(a)Each Monday, and Thursday from 5:30pm until 6:00pm; and
(b)The mother do all things reasonably necessary to ensure the children are provided with a device on which the calls can take place and the children are provided with privacy for the duration of their call.

6.The father’s time with the children be conditional upon his compliance with the following:
(a)That within 14 days the father shall attend upon his current mental health provider.
(b)The father shall do all things reasonably necessary to obtain a written report/letter from the abovementioned mental health provider as to whether the father requires further treatment including Anger Management Counselling and if so, the frequency of same and confirmation that the father is compliant with any treatment he may be undergoing with that mental health provider. The father shall provide the said mental health practitioner a copy of these orders, reasons for decision and a copy of the Family Reports dated 6 October 2022 and 4 March 2022. The report/letter shall acknowledge that the author has been provided with and read these orders, reasons for decision and the said Family Reports.
(c)On receipt of the report/letter referred to in Order 6(b) above, the father shall provide to the mother or her legal representative a copy of the report. The mother shall be and is hereby authorised to communicate with the father’s mental health provider and request reports (not more than once every 6 month period) as to the father’s compliance with any treatment that is recommended by the nominated mental health provider.
(d)The father shall continue to be compliant with any treatment that is recommended by the nominated mental health provider.
(e)In the event the father is not compliant pursuant to Order 6(b) and Order 6(d) above, the father’s time shall be suspended until such time that he furnishes evidence of compliance with any treatment that is recommended by the nominated mental health provider.

7.That the parties do all things necessary to forthwith engage the children and themselves with C Family Centre (D Street, City B VIC) for the purpose of engaging in family therapy with a view toward re-establishing their relationship with their father as follows:
(a)The parties shall do all acts and things and sign all documents as are requested by C Family Centre to give effect to these orders.
(b)Despite Order 3 above that after a period of 3 months subject to the recommendations of the therapist engaged by the parties at C Family Centre the children shall recommence spending time with their father at times and frequency and upon such conditions as recommended by C Family Centre.
(c)That the Independent Children’s Lawyer copy and provide to C Family Centre a copy of these orders, reasons for decision, a copy of the Family Reports dated 6 October 2022 and 4 March 2022 and a copy of the subpoenaed material produced by E Services as background material to assist them in providing family therapy to the parties and the children.
(d)That the parties shall equally pay the costs of C Family Centre providing its services in accordance with these orders.

8.That the parties shall ensure the other party is notified of any serious injury or illness or medical emergency in relation to the children, or any of them, as soon as practicable via text message.
9.The mother and father and their servants and agents are restrained from:
(a)Discussing these Orders or matters related to the parenting proceedings with the children;
(b)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MYERS J:

This is a final parenting decision in the matter of Otero & Kasun in relation to the children X, born in 2015, and Y, born in 2016.
The Applicant father seeks orders in accordance with his updated Minute of Order tendered in court on 9 November 2022, forming Exhibit ‘F’ in the proceedings, as follows:
(1)That the mother cause the children to reside in the greater metropolitan Sydney Area within 28 days.
(2)That in the event that the mother refuses to relocate the children’s residence back to the greater Sydney metropolitan area in compliance with Order 1 than the children live with the father.
(3)That the parties do all things necessary to engage the children X born in 2015 and Y born in 2016 (herein referred to as ‘the children’) with an appropriate and qualified family therapeutic service based in the Sydney area for the purpose of engaging in family therapy with a view toward re-establishing their relationship with their father.
(4)That after a period of 3 months subject to the recommendations of the therapist engaged by the parties as per Order 3, the children recommence spending time with their father at times and frequency recommended such service.
(5)That leave be granted to the therapist from the therapist appointed per Order 3 to receive material from E Services concerning the parties engagement with the service including any documents produced in response to a Subpoena to the Court.
(6)At the expiration of 6 months a report be requested to be prepared by the therapist appointed per Order 3 in relation to the progress of the therapeutic assistance and the children’s willingness to spend time with the father.
(7)After 6 months of therapeutic assistance the children spend time with the father as follows;
7.1For two months each alternate weekend from 5pm Friday until 5pm Sunday
7.2After the two-month period in Order 7.1 for a two month period, each alternate weekend from 5pm Friday until the commencement of school on Monday or 9am if the Monday falls in a school holiday period;
7.3After the two-month period in Order 7.2, thereafter, each alternate weekend from 5pm Thursday until the start of school the following Tuesday or 9am if the Tuesday falls in a school holiday period
(8)In the event that the children remain living in City B, then the following orders apply.
(9)That the parties do all things necessary to engage the children X born in 2015 and Y born in 2016 (herein referred to as ‘the children’) with C Family Centre (D Street, City B VIC) for the purpose of engaging in family therapy with a view toward re-establishing their relationship with their father.
(10)That after a period of 3 months subject to the recommendations of the therapist engaged by the parties at C Family Centre the children recommence spending time with their father at times and frequency recommended by C Family Centre.
(11)That leave be granted to the therapist from C Family Centre to receive material from E Services concerning the parties engagement with the service including any documents produced in response to a Subpoena to the Court.
(12)At the expiration of 6 months a report be requested to be prepared by C Family Centre in relation to the progress of the therapeutic assistance and the children’s willingness to spend time with the father.
(13)After 6 months of therapeutic assistance the children spend time with the father as follows;
13.1On one occasion during the school term on a Saturday as agreed between the parties but failing agreement the 5^th weekend from 9am until 4pm at an appropriate Children’s Contact Centre.
(14)That this matter be relisted for further directions at a date suitable to the Court after 6 months.
(15)That liberty be granted to all parties to relist the matter on 7 days’ notice.
The Respondent mother seeks orders in accordance with her updated Minute of Order tendered in court on 8 November 2022, forming Exhibit ‘E’ in the proceedings, as follows:
(1)That the mother has sole parental responsibility for the children X born in 2015 and Y born in 2016 (“the children”).
(2)That the children live with the mother in City B.
(3)That the children spend no time with the father.
(4)That the children shall communicate with the father via Skype/Zoom with the father to initiate the calls as follows:
(a)Each Tuesday, and Thursday from 5.30pm until 6pm.
(5)That the mother shall ensure the father is notified of any serious injury or illness or medical emergency in relation to the children, or any of them, as soon as practicable via text message.
(6)The mother and father and their servants and agents are restrained from:
(a)Discussing these Orders or matters related to the parenting proceedings with the children;
(b)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent.
The Independent Children’s Lawyer seeks orders as per their Minute of Order tendered in court on 3 August 2022, forming Exhibit ‘C’ in the proceedings, as follows:
(1)That the mother has sole parental responsibility for the children X born in 2015 and Y born in 2016 (“the children”) and for that purpose:
(a)before the mother makes any major long term decision in respect of the children, the mother will:
(i)provide the father with all relevant information and documentation in relation to the issue;
(ii)inform the father in writing of her proposal for the children, including the reason(s) why she believes the proposal is in the children’s best interest;
(iii)provide the father with any name and contact details as may be relevant; and
(iv)give the father at least 7 days to consider the mother’s proposal and respond, before the mother proceeds with her proposal; and
(b)if the father responds within 7 days of receipt of the mother’s proposal, the mother will consider the father’s views and advise him of either her acceptance or rejection of the father’s views.
(2)That the children live with the mother in City B.
(3)Subject to the father’s compliance with Order 6 below, the children spend time with the father by agreement and failing agreement as follows:
(a)Commencing the last weekend of the calendar month in which the Court makes these orders, the children spend (6) supervised visits with the father for 3 hours each with such time to occur on both the Saturday and Sunday of the last weekend of the calendar month and at a place and time to be agreed upon by the parties with such time to occur within a 15 km radius of the Melbourne Central Business District with the cost of such supervision to be shared equally by the parties.
(b)At the end of 6 supervised visits the father is to provide to the mother written confirmation from his treating psychiatrist or psychologist that the father is:
(i)Attending upon all recommended therapy;
(ii)Is compliant with any prescriptions for his mental health; and
(iii)If he is in ongoing therapy, a description of the frequency of any sessions that the father will be recommended to attend upon in the future.
(c)Thereafter, the father spend time with the children in City B once per month from 11.00am Saturday to 5.00pm Sunday for a period of 4 months.
(d)Thereafter, the children will spend time with the father during the school holiday periods as follows:
(i)in the terms 1, 2 and 3 school holidays, for the second week with the father at his residence as long as such residence is within the Commonwealth of Australia.
(ii)In the first term 4 holiday period after the children have had 4 overnight visits with the father in accordance with Order 3(c) the children spend time with the father for 10 nights as agreed between the parties and if not agreed, for (10) nights commencing on the first Monday of January.
(iii)In the proceeding term 4 holiday periods, the children spend time with the father for the second half of the term 4 school holiday periods.
(iv)For the purposes of these orders, the parties each share the costs of the children’s flights to and from Sydney for the purposes of the children’s time with the father and changeover on such occasions is to take place at the arrivals gate of Sydney Domestic Airport and/or Melbourne domestic airport.
(4)That in order to facilitate the child spending time with the mother in accordance with Order 3 above, the parties shall attend to the following:
(a)Both parties shall follow all reasonable requests and directions given by the nominated supervision service;
(b)The parties be equally responsible for all costs payable to the nominated supervision service including the costs of obtaining contact reports; and
(c)Both parties shall complete and return to the nominated supervision service all intake/enrolment paperwork within 7 days of receiving same.
(5)Commencing in the first week following the children’s first visit with the father in accordance with Order 3(a) the children shall communicate with the father via Skype/Zoom with the father to initiate the calls as follows:
(a)Each Monday, and Thursday from 5.30pm until 6pm
And the mother do all things reasonably necessary to ensure the children are provided with a device on which the calls can take place and the children are provided
with privacy for the duration of their call.
(6)The father’s time with the children be conditional upon his compliance with the following:
(a)That within 14 days the father shall attend upon his current mental health provider.
(b)The father shall do all things reasonably necessary to obtain a written report/letter from the abovementioned mental health provider as to whether the father requires further treatment and if so, the frequency of same and confirmation that the father is compliant with any treatment he made be undergoing with that mental health provider.
(c)On receipt of the report/letter referred to in Order 6(b) above, the father shall provide to the mother or her legal representative a copy of the report.
(d)The father shall continue to be compliant with any treatment that is recommended by the nominated mental health provider.
(e)In the event the father is not compliant pursuant to Order 6(b) above, the father’s time shall be suspended until such time that he furnishes evidence of compliance with any treatment that is recommended by the nominated mental health provider.
(7)That the parties shall ensure the other party is notified of any serious injury or illness or medical emergency in relation to the children, or any of them, as soon as practicable via text message.
(8)The mother and father and their servants and agents are restrained from:
(a)Discussing these Orders or matters related to the parenting proceedings with the children;
(b)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent.
By way of Background:

The father was 39 years of age and the mother 40 years of age at the time of the Hearing.
The parties commenced a relationship in mid-2014. The father asserts the parties began living together in mid-2015 and the parties married in 2015. They have two children, X, born in 2015, and Y, born in 2016.
The mother suggests that in June 2018 the parties separated on a final basis while the father suggests that the parties separated on a final basis on 14 January 2019. Given these are parenting proceedings nothing turns on the court making a finding as to either party being correct. Where the issue is unimportant to the determination of what is in the best interests of the two children the court simply notes that the parties separated sometime between June 2018 and January 2019.
It is an agreed fact that the parties’ two children have lived with the mother since separation and have spent intermittent periods of time with the father. The children have not spent any time with the father since 30 October 2020.
The parties’ relationship was one of great acrimony. The father alleges that in 2016 the mother struck him whilst he was driving during an argument resulting in the father receiving a black eye. The mother alleges that in late 2017 the father told her that the children should have been aborted and that the mother then advised the father she wanted to separate.
The parties were serving members of the Armed Forces during the period of their relationship. The mother ultimately left the Armed Forces after separation and remains working on a casual basis. The father remains working for the Armed Forces.
In 2019 the mother was deployed with the Armed Forces for a four month period. During that time, the father cared for the parties’ children in the mother’s home. The mother sought to minimise the father’s role caring for the children during that period suggesting in her evidence that her parents assisted with the caring for the children. The court accepts the father evidence that while assisted by the maternal grandparents he was the children’s primary carer during the period the mother was deployed.
Noting the care provided by the father the court does not accept the mothers evidence found at paragraph 89 of her affidavit where she suggested that the father did not have a substantial relationship with the children, that he was not actively involved in their care and that the children are not familiar with the father. Rather the court views the suggestions made by the mother at paragraph 89 of her affidavit as evidencing the mother’s lack of regard for the importance of the children’s relationship with their father.
Despite the court having heard evidence of the parties’ ability to make functioning arrangements for care of the children between themselves, the parties’ communication was just plain awful. The mother conceded in cross examination (transcript 8 Nov’ 2022 p.282) that on 30 October 2019 she sent the father text messages that provided:
You’re nothing but a fucking deadbeat. You’re a serious fucking drop kick. Too focused on your piece-of-shit car. Don’t come back to this house. I will make an arrangement when the children aren’t here to come get your shit. You come here and I will call the police, so fuck off.
10 minutes later the mother sent a further text message that provided:
Most of your shit is at the front door. Your hanging clothes, you can pick up tomorrow at lunchtime when I’m home, and I will take my keys back at the same time. You step foot onto my house and I will have you arrested.
The mother gave evidence that up until about November 2019 the father was living in “base service accommodation” and that as a result she was facilitating visits between the father and the children at her home every second weekend.
It is the mother’s evidence that in November 2019 the father moved into a three bedroom residence and the children commence spending time with the father each alternate weekend until June 2020. By way of contrast the father suggests that in December 2019 he moved into his own home and continued an equal time care arrangement with the children.
During cross examination (transcript 3 Aug’ 2022 p.68 and p.70) the father was taken to some of his text message communications with the mother that were lacking in respect and included a text exchange between the father and the mother that provided:
Mother: I’ve had them for the last two weeks, so yes, you are taking them Friday.
Father: Cry me a river. You spat the little cherubs out. No rest, eh.
The father was taken to another exchange:
Mother: I sincerely apologise for ruining your life. I really am. Can’t go back and change that. We have two children now, so can you please just focus on that.
Father: No. You just want time off. They’re hard work. You don’t give a fuck about the kids and any relationship they have with their dad. You use them as a pawn. You threatened to cut access twice these evening. You dropped them off with me to fuck off and go get your fuck on with – on whether with old mate here or old mate in [City F] or wherever you’ve duped poor idiot. I’m not an idiot. Stop trying to pull the wool over my eyes, you F.
The father gave evidence that on 11 March 2020 he forgot to pack shoes for X to attend day care and alleged that mother texted the father a barrage of insults to calling him “fucking hopeless” and informed him that he was no longer allowed to pick the kids up from day care. During cross examination (transcript, 8 Nov’2022 p.282) the mother accepted she had sent the father the following text:
Why is that? Is it too fucking hard to pick them up when you pick him up? What shoes did he have to walk out in? So now because of your pure incompetence I have a crying child wanting his [G Shoes]. That’s it. You’re no longer allowed to pick them up from day care. Fucking hopeless. One fucking job and you can’t even do that.
During the course of cross examination of the parties, the court was taken to various incidents of appallingly disrespectful and abusive communication between one another. It was obvious to the court that this type of communication went both ways, and for a large period of time was the norm. The mother summed up the parties’ style of communication well where during cross examination (transcript, 8 Nov’ 2022 p.280) she commented, “we had ugly communication”.
By about mid-June 2020 the mother gave evidence the children commence spending equal time in both parties’ households, with changeover occurring after child care on Friday afternoons. The mother suggested the arrangement continued for a total period of six weeks.
In about mid-2020 the mother and Mr H commence a relationship. It is not disputed that within a relatively short period the children began to call Mr H “dad”. The mother sought to defend this occurrence as being one that developed organically, where the mother suggested, it “was something they did themselves, and we’re not going to tell them no to that”. (transcript 8 Nov’ 2022, p.295).
In about September 2020 the mother told the father she wanted to change the children’s last names. The father did not, and does not agree to change the children’s last names.
In about September 2020 the father gave evidence that his mental health started to decline. There appeared to be concessions made by both parties that the father’s mental health was negatively affected by his deployment and service in the Armed Forces.
It was the mother’s position that in about September 2020 she attempted to facilitate time between the father and the children. By way of contrast it was the father’s position that at the end of September 2020 he was having difficulties seeing the children.
It was the father’s position that by September 2020 the mother was restricting time between him and the children, so much so that the father suggested that on 30 September 2020 he visited Mr H at his workplace to “implore” him to help the father to be able to spend time with the children. The mother suggested that the father had actually attended Mr H’s workplace to be abusive.
Mr H gives evidence of what he suggests the father did at his workplace found at paragraph 18 of his affidavit filed 12 May 2022, where he deposes the father threatened him stating:
I want my kids back and I will do whatever it takes to get them back and if I ever see you touch the kids I will bash you.
The evidence about what did or did not happen at Mr H’s workplace is a case of one party’s word against the other and the court does not make a finding about what happened. It is not necessary for the court to make findings about what did or did not happen where at no stage was it ever a good idea for the father to confront Mr H at his workplace to ‘implore’ him or otherwise. The court finds that the father’s attendance at Mr H’s workplace would have been confronting and did little to ease the state of poor relations between the father and the mother.
During cross examination (transcript 3 August 2022, p.114) the father was taken to a text message he was alleged to have sent to the mother in September 2020. The following exchange, between counsel for the mother and the father, well reflects the state of the parties’ relationship in about September 2020 and the father’s attitude towards the mother and her new relationship:
Mr O’Brien:     So you agree that you sent that message, do you, sir?
Father:           ---In response to your client’s email – text. I see. I see?---
Mr Obrien:      Sir, do you recall saying: Fuck that dog –
Father:           in respect of [Mr H]?
Mr O’Brien:     Fuck that dog idiot. Must have a brain injury to put up with you.
Father: That’s pretty savage. Sounds like something I might say, yes. I don’t know. I don’t remember it exactly, but yes.
On or about late 2020 the father commenced a relationship with Ms J.
In late 2020 an incident occurred between the parties in the carpark at the children’s day care centre. The father had collected the children and the mother suggests that she was of the view the father was essentially kidnapping them. Ultimately it appears the mother ended up in the back seat of the father’s vehicle with a door open trying to pull the kids out of their seats while the father was attempting to drive away. This incident was explored with the mother during cross examination that left the court concerned and confused as to who did what to whom (transcript 8 November 2022 p.264-265). It is hard for the court to know what actually happened, particularly given what appeared to the court to be inconsistencies in the mother’s account to police and that to the court about having being punched by the father (transcript 8 Nov’ 2022, p.264-265), but it was a dramatic scene and there was yelling and screaming and pushing and pulling and the children were involved in a tug of war where it appears X lost a shoe off his foot. The police attended in the presence of the children.
The children were exposed to an awful situation culminating in the father being charged with common assault and intentionally choke person without consent. The court was left in a situation of being unable to determine whether the father had or had not perpetrated family violence during the incident where the court cannot simply just prefer the mother’s version over the father’s.
It is not important for the court to make a specific finding for or against the father about this incident as this is not a case about the court simply determining what is in the best interest of the children based on just a single alleged incident of family violence, rather it is a case involving a myriad of issues that also include the nature of the relationship between the children and the father, the father’s capacity to provide for the needs of children particularly when considering his mental health, and the allegations made by the mother that the father will physically harm or kill the children.
The mother suggested in the case that because of the preschool carpark incident the children are now fearful of the father. It is not disputed that the children have not spent time with the father in person since such incident.
It is not disputed that in late 2020 the father suffered a mental health episode in which he was highly distressed and attempted suicide.
In about late 2020 the father was diagnosed with a mental condition and in late 2020 the father commenced time as an inpatient at K Hospital.
In late 2020 the parties divorced and in on or about early 2021 the mother and Mr H commence living together.
In early 2021 X was diagnosed with ADHD. The court notes that the father disputes the diagnosis.
In early 2021 the father completed an Outpatient Program at K Hospital for assistance with mood and anxiety and in early 2021 the father received assistance as an inpatient at K Hospital.
In or about mid-2021 the father appeared in the Local Court. The charges for offences against the mother were not proven but rather the father was dealt with under section 32 of the Mental Health (Forensic Provisions) Act NSW.
In mid-2021 a final ADVO was made against the father for the mother’s protection and for those with whom the mother is in a domestic relationship for a period of two years.
In late 2021 the father completed an Outpatient Day Program for anxiety management at K Hospital and in the same month the father commenced living with Ms J. The court notes that Ms J has one child from a previous relationship, L, who lives primarily with Ms J and the father.
The court notes the contents of the letter of Dr M, Consultant Psychiatrist dated late 2021 that refers to father’s admission at K Hospital for management of “acute anxiety”.
On 5 August 2021 the father commenced proceedings in the Federal Circuit and Family Court of Australia.
In late 2021 the mother, the children and Mr H relocated to City B, Victoria. Mr H has two children of a prior relationship aged 6 and 10 who live in Sydney with their mother and now spend time with Mr H during the school holidays as a result of his relocation. On 29 September 2021 the mother filed a Response.
It is the father’s position that he did not know the mother and children had relocated and that he only realised the relocation to Victoria had taken place after reading the material contained in the mother’s Response. The father suggests, and the court accepts, that the mother’s move with the children occurred without his consent or knowledge. The mother’s cross examination set out below (transcript 8 Nov’ 2022, p.287) makes clear this point:
Mr Cohen:      The father never granted you permission to move - - -?
Mother:          ---No.
Mr Cohen:      - - - did he?
Mother:          ---No, he did not.
The relocation was the subject of an application by the father where the father sought the return of the children. The father’s application was determined at a contested Interim Hearing on 9 November 2021 before a senior judicial registrar. Having heard the competing applications, The senior judicial registrar made Orders providing for the children to remain in Victoria living with the mother and communicate with the father on FaceTime, on a gradually increasing basis as well as one supervised face-to-face visit with the children, subject to the communication going well.
On 17 March 2022 a session between the children and the father was undertaken by Zoom. It the mother’s position that five minutes into the meeting the mother heard the children crying and both children did not wish to participate any longer in the session.
On 24 March 2022 a second Zoom session was organised by N Contact Centre with the mother, N Contact Centre and the children in order to better prepare them for a Zoom session with the father.
On 31 March 2022 a third Zoom session was organised which was to include the father, but the children became upset in the process, and it ultimately failed
The court was concerned by the mother’s attitude towards the children’s relationship with the father and the complete absence of any insight she and Mr H possessed as to why a relationship between the father and the children would be important.
Both the mother and Mr H provided a contrived narrative around the father being “just the father” and not being the children’s “dad” instead trying to impress upon the court that Mr H was actually the children’s dad with Mr H having seamlessly taken the father’s position in the children’s lives but in the form of a better version than that of the father.
The mother’s contrived narrative, that was unwavering even in the face of cross examination, well demonstrated her lack of support and encouragement of the children’s relationship with the father, and left the court with little doubt that the father’s attempts to have a meaningful relationship with the children will go unsupported by the mother and will for want of a better expression be an uphill battle for the father.
The court accepts the mother expressed holding significant fears for the children’s safety. During the following cross examination the mother made clear those fears where she stated:
I believe that he has such a hatred for me that given the opportunity, he will harm those kids, and I don’t want my kids being a statistic and have them thrown off the [O Bridge], so, you know, I want to protect my kids and do everything I can to make sure that they’re safe, and I don’t think they’re safe with him at all. I’m sorry. (transcript 8 Nov’ 2022, p.290).
Counsel for the Independent Children’s Lawyer cross examined the mother further for the purposes of exploring the reasonableness and genuineness of her fears as follows:
Ms Carter: You were asked by Mr Cohen about the father’s behaviour towards the children a bit earlier this afternoon, and it was suggested to you that in terms of [Mr Otero]’s conduct towards the children, there has been no allegations or suggestions made by you that he has been abusive towards the children other than that event in late 2020; is that right?
Mother: ---Correct.
Ms Carter:And other than the father’s conduct which you saw in court in August and the information that you’ve read in the family report, there has been nothing between August and today that would suggest to you that the father is at risk of physical harm to the children?
Mother: ---Not physical harm, no.
The court was not convinced as to the reasonableness or genuineness of the mother’s fears that the father would seek to physically harm or kill the children. The court is not satisfied that the father poses an unacceptable risk of physically harming or killing the children.
The father’s attitude towards the court, counsel for the mother (where the father swore when giving answers at times), the father’s failure to turn up at court on time, where he lounged around in the witness box and walk to the witness box in front of the bar table (suggesting he did not want to have to walk past the mother) was such that I had to pull the father up on his apparent disregard for the proceedings. (transcript 4 August 2022,p.136-137). So disrespectful was the father’s behaviour at times that the court wondered whether the behaviour was actually put on by the father as a means of throwing his case. The father’s behaviour was at its lowest discourtesies and at its highest boarded on contempt in the face of the court where the father had a tendency to interfere with or undermine the authority, performance or dignity of the courts or those who participate in their proceedings (see. Witham v Holloway (1995) 183 CLR 525 per McHugh J at 538-539).
The father’s attitude and behaviour towards the Child Court Expert however was nothing short of disgraceful where the Child Court Expert records the following interactions with the father after an observation session attempted between the children and the father failed at paragraph 46 of her Family Report:
After the observation, the CCE said to [Mr Otero] that the experience must have been difficult. [Mr Otero] called the CCE an “oxygen thief” and told her that it was another example of her “fucking incompetence.” He said that there was no benefit to the observation and there is no accountability. He stated that he did not know “what you (the CCE) expected to achieve by deliberately upsetting the children.” He said that if he did not participate it is on him, but did the CCE understand that the children drove three hours to attend the appointment and [Y] gets car sick after an hour and a half in the car. The CCE concluded the assessment with [Mr Otero] at this time.

During cross examination of the Child Court Expert counsel for the mother asked the Child Court Expert whether she felt intimidated at all when the father “was saying these things”. The Child Court Expert responded stating “I wasn’t intimidated. I was shocked that he would behave like that and I immediately terminated the assessment. I wasn’t going to continue in that situation”.
It is worth noting the submission made by counsel for the Independent Children’s Lawyer drawing the court’s attention to the background surrounding the father’s behaviour towards the Child Court Expert that the court gives weight, that provided:
Whilst it is clear, in the Independent Children’s Lawyer’s submission, that the Father’s conduct in the interviews and in Court was offensive and disrespectful, the Father’s behaviour also needs to be considered in the following context:
(1)The Father’s actions did not take place in front of the children;
(2) The Father has not seen children in 2 years;
(3)There has not been compliance with past orders providing for time between the children and the Father;
(4)The Mother relocated interstate with the children without notice to the Father;
(5)The Father gave evidence to the effect that that he has been extremely stressed as a result of these proceedings and parenting dispute.
Whilst this does not excuse the Father’s behaviour, it provides some context for such behaviour when it might otherwise be given greater emphasis when examined in isolation.
The court accepts that while in part the stress of the proceedings on the father and the refusal of the children to see him at the interview would have contributed to his behaviour it certainly does not excuse it or absolve the father of such behaviour.
The mother made much of the father’s behaviour during her interview with the Child Court Expert. At paragraph 33 found at page 9 of the Family Report under the heading “Family Violence” the mother and Mr H were recorded by the Child Court Expert as discussing the father’s behaviours stating:
33.[Ms Kasun] and [Mr H] each alleged that [Mr Otero] was abusive during their last Court appearance. They provided similar information including that [Mr Otero] turned up late to the last Court event and the Court proceedings were stopped eight or nine times because of [Mr Otero]’s abusive behaviour. [Ms Kasun] explained that [Mr Otero] was swearing at people, including “c bombs and f words.” [Ms Kasun] stated that she continues to have fear of [Mr Otero] due to [Mr Otero]’s recent presentation at Court events.
34.There were no other risks reported or identified during the assessment.
To be clear the proceedings were not “stopped eight or nine times” because of the father’s “abusive behaviour”. While the father did use the word “fuck” when providing evidence in cross examination it fell short of the mother and Mr H’s suggestion that the father “was swearing at people, including “c bombs and f words”. The court importantly notes the Child Court Expert’s observation at paragraph 34 set out above, in the context of family violence, where “(t)here were no other risks reported or identified during the assessment”. This is particularly important where the mother had not sought to suggest to the Child Court Expert she believed the father would, or was capable of, killing the children as had been initially suggested and then discounted by her in cross examination. It does not mean the court does not accept the mother is fearful of the father and concerned about his behaviour and issues of mental health.
There are some difficulties with the orders sought by the father in the proceedings. The father commenced these proceedings on 5 August 2021 and has sought varied orders since that time. The latest version was provided to the parties and the Court on 9 November 2022, where the father sought, amongst other things, interim relief that would see the matter relisted for further directions at a date suitable to the Court after 6 months and the parties granted general liberty to relist the matter on 7 days’ notice. The decision in this matter is a final one and the court cannot, and will not, make orders of an interim type suggested by the father in the proceedings. It does not mean that the court will disregard the orders sought by the father in completeness, rather it will consider the orders sought by the father with a view to them being made final orders.
The court considers the matters contained at section 60CC of the Act.
There is a benefit to the children having a meaningful relationship with both parents but only in circumstances where they are kept safe and their needs are met. There is no argument in these proceedings that there is a benefit in the children having a meaningful relationship with the mother. The issue of benefit to the children maintaining a meaningful relationship with the father is a more complex matter and rests on the foundation that the any benefit must be conditional on, and can only be derived where the father is able to meet the children’s needs and that they are safe in the father’s care.
The court considers the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Counsel for the mother submitted that the nature of the father’s mental health issues and his ability to manage his mental health is of great prominence in these proceedings, and that whilst it was accepted that the children not having a relationship with their father is likely to negatively affect their well-being, the Court should be eager to protect the children from harm when the father’s mental health issues and his ability to manage them are unknown at this stage.
Counsel for the mother stressed the weight to be attributed to these matters “cannot be understated”, where the children were extremely resistant to engaging with the father, and his ability to handle such resistance in a rational and safe way is largely untested. In this regard the court view’s the father suggestion that the court should order the children to live with him (where the mother refuses to return the children to live in Sydney) as laden with the risk where the father would be ill equipped to deal with the children given their resistant behaviour towards him, should the court make such an order. Further the making of an order that would see the children taken from the mother’s care to move to live with the father would ignore the father’s capacity to both provide for their emotional needs and shield them from his potential anger or emotional outburst.
The significant issue of the father’s poor mental health coupled with the children’s resistance to spending time with him, would place the children at risk of being subjected to or exposed to abuse and or family violence causing the children at the very least psychological harm where the father could easily lose his temper at the children and berate them. This risk of harm is unacceptable where the father’s inability to control his anger could see him emotionally delaminate whist caring for the children in a similar manner and of a type the court observed in the father’s reactions to, and verbally abusive behaviour towards, the Child Court Expert, immediately after the children had refused to see him during the family report interview.
The mother amended her application suggesting that in order to protect the children there should be no time between them and the father other than video calls.
The mother’s safety concerns reading the father were recorded by the Child Court Expert in the Family Report dated 6 October 2022 at paragraphs 36 and 38 as being:
36.[Ms Kasun] expressed concern about the children’s emotional well-being and their physical safety due to the unpredictable behaviour of [Mr Otero]. [Ms Kasun] expressed concern that [Mr Otero] would not be able to cope with the demands of the children, especially if they were upset, distressed or misbehaving.
38.[Ms Kasun] expressed concern about [Mr Otero]’s mental health, especially in relation to his history of suicide attempts and recent presentation at Court events. She said that [Mr Otero] is not adhering to treatment and not taking the medication that has been prescribed to manage his condition.
The court does not accept the mother’s position that the only way to be protective of the children it to make an order for no time.
Counsel for the Independent Children’s Lawyer put that that whilst there is some risk present in relation to children’s exposure to the father’s mental health issues or emotional volatility, with the appropriate safeguards, those risks are manageable. The Independent Children’s Lawyer’s position is that the children’s time with the father ought to be conditional upon the father engaging with the children’s psychologist, as well as conditional upon the father’s compliance with his own mental health practitioner’s recommendations. The court accepts the submissions of the Independent Children’s Lawyer in principle that there be a requirement that the father’s time be conditional on complying with the provisions of the Independent Children’s Lawyer’s Order 6 that provides:
The father’s time with the children be conditional upon his compliance with the following:
a.That within 14 days the father shall attend upon his current mental health provider.
b.The father shall do all things reasonably necessary to obtain a written report/letter from the abovementioned mental health provider as to whether the father requires further treatment and if so, the frequency of same and confirmation that the father is compliant with any treatment he made be undergoing with that mental health provider.
c.On receipt of the report/letter referred to in Order 6(b) above, the father shall provide to the mother or her legal representative a copy of the report.
d.The father shall continue to be compliant with any treatment that is recommended by the nominated mental health provider.
e.In the event the father is not compliant pursuant to Order 6(b) above, the father’s time shall be suspended until such time that he furnishes evidence of compliance with any treatment that is recommended by the nominated mental health provider.
An order of a type akin to Order 6 proposed by the Independent Children’s Lawyer is in the view of the court necessary where the father’s mental health is such, that left ignored and or untreated it will place the children at risk of physical or psychological harm where the father is unable to manage his behaviour such that he will exposed the children to, abuse, neglect or family violence. The Independent Children Lawyer’s proposed Order 6 appears at first glance protective and purports to ameliorate the risks associated with the father’s mental health where no time will occur unless the father obtains a written report/letter from the abovementioned mental health provider as to whether the father requires further treatment and if so, the frequency of same and confirmation that the father is compliant with any treatment he made be undergoing with that mental health provider.
However proposed Order 6(b) that details what is to be included in the report/letter is absent the requirement that the father’s mental health provider be provided any background about the father and his issues in these proceedings. Further the court is not satisfied that the issue of the father’s anger (noting his presentation and verbally abusive behaviour towards the Court Child Expert) would likely be addressed by the mental health provider. In order that the report/letter have the desired effect of being protective, it will be necessary for the mental health provider to be provided with background that includes having been provided with, and read the two Family Reports dated 6 October 2022 and 4 March 2022 and also comment upon whether the father should undertake anger management counselling. Further the actual means by which the father’s compliance with proposed Order 6 is monitored on an ongoing basis is lacking where proposed Order 6 as drafted by the Independent Children’s Lawyer fails to make the father’s time contingent with his compliance with Order 6(d) that provides that the father shall continue to be compliant with any treatment that is recommended by the nominated mental health provider.
In order for the Independent Children’s Lawyer’s proposed Order 6 to be the means by which the children’s relationship is rendered safe it would be necessary to amend the proposed Order 6 to read:
(a)That within 14 days the father shall attend upon his current mental health provider.
(b)The father shall do all things reasonably necessary to obtain a written report/letter from the abovementioned mental health provider as to whether the father requires further treatment including Anger Management Counselling and if so, the frequency of same and confirmation that the father is compliant with any treatment he made be undergoing with that mental health provider. The father shall provide the said mental health practitioner a copy of these orders, reasons for decision and a copy of the Family Reports dated 6 October 2022 and 4 March 2022. The report/letter shall acknowledge that the author has been provided with and read these orders, reasons for decision and the said family reports.
(c)On receipt of the report/letter referred to in Order 6(b) above, the father shall provide to the mother or her legal representative a copy of the report. The mother shall be and is authorised to communicate with the father’s mental health provider and request reports(not more than once every 6 month period) as to the father’s compliance with any treatment that is recommended by the nominated mental health provider.
(d)The father shall continue to be compliant with any treatment that is recommended by the nominated mental health provider.
(e)In the event the father is not compliant pursuant to Order 6(b) and Order 6(d) above, the father’s time shall be suspended until such time that he furnishes evidence of compliance with any treatment that is recommended by the nominated mental health provider.
While the Independent Children’s Lawyer’s proposal is helpful it does not adequately address the level of children’s resistance to having a relationship with the father. Although there is mention in the Independent Children’s Lawyer’s submissions of the children continue to engage with their counsellor and the father doing also, there is nothing within the orders sought by the Independent Children’s Lawyer that would compel the mother to continuing the children in counselling or that would require the father to engage with the children’s counsellor.
Despite the father’s failings, he possesses real insight in to the difficulties in his fractured relationship with the children and the need for work to be done with the children to try and re-establish and improve that relationship. The father’s minute proposing family therapy through C Family Centre in City B, (although in the form an interim one) possess the greatest promise of a return of a normal and loving relationship between the children and the father. To ignore or wish away the issue is not protective. Pushing the children into time without some preparation by means of family therapy will not be constructive and will in the view of the court place the children at risk of psychological harm.
During cross examination (transcript, 9 Nov’ 2022, p.379) the Child Court Expert, Ms P, provided the court with some helpful insights regarding the usefulness of C Family Centre assisting the children that are captured in the following exchange between the expert and the bench:
Judge Myers:   I would like to hear more about [C Family Centre]. [Ms P], you’ve seen in the father’s orders that he seeks that the children engage with a particular service in [City B] called [C Family Centre] for family therapy, and you’re aware that children are currently undertaking some counselling with a counsellor. The evidence appears to be that they’ve only had a couple of sessions with the counsellor and, thus far, the counselling has been unsuccessful. Do you think it might be beneficial for there to be a new counsellor engaged specifically to provide family therapy, rather than trying to utilise the existing counsellors that seem only had a couple of sessions?
Ms P:---It certainly could be beneficial. It would depend – therapy can – a big portion of therapy can depend on the rapport with the therapist as well, but engaging someone that is dealing with the whole family from the beginning could be beneficial, because it’s a new – new insight, and I’m assuming that they would have instruction, or the orders provided to them so that they would have an understanding of what the purpose is.
Judge Myers:   So is what you’re saying looking at something with fresh eyes – being a new counsellor or being a new family therapist rather than engaging with the old? Looking at it holistically with everybody afresh could be a better outcome, or potentially a better outcome.
Ms P:   ---Yes. It could be. Yes.
Counsel for the father sought to explore with the Court Child Expert the practicalities of engaging with C Family Centre. During that cross examination (transcript, 9 Nov’ 2022, p.380-390) Ms P provided the following opinion as to how sessions could work:
[Ms P]:I think that’s why the proposal for a – sorry, a new intervention, a new therapist is there because it’s a – as I was saying, it’s a fresh view of the matter. You start from the beginning with everybody involved, because, as I said, I can only speak on how I would run the intervention to give you an idea, you know. It is something that I would meet with all parties separately initially, so [Mr Otero], [Ms Kasun], and then the children, to get an understanding of where everybody was at and then I would formulate my treatment plan. I think changing to a new therapist, gives that – that this is someone that’s agreed rather than something that [Ms Kasun] has chosen for the children, would be my understanding of why it may work better for [Mr Otero] to suggest that rather than the current therapist.
Mr Cohen:And how many sessions would that – in terms of practicality, how many sessions would happen and how often would they be and who would they be with?
[Ms P]:---Well, as I said, initially I would meet with everybody, and then if I was doing an intervention with the children I would imagine that you would be expecting some level of change in about six to eight sessions, not necessarily a complete removal of all that they’re experiencing, but if you were doing an intervention, you would be expecting some change between six and eight sessions.
Mr Cohen:But, in terms of the father, the father could do those sessions by Zoom or Teams or something, by AVL?
[Ms P]:---Certainly. Yes, the – I mean, the benefit of the pandemic and the research behind the interventions that psychologists have done over Zoom versus face-to-face is that, you know, they’re still effective sessions with adults, so they certainly could happen for [Mr Otero] over a – over a video conference.
In respect of the issue of engagement of C Family Centre to assist the children the mother deposed at paragraph 83 of her affidavit to a discussion she had with “the GP” to the effect that C Family Centre was not appropriate. The GP referred to by the mother at paragraph 83 was not named; there were no details given as to whether the GP was the children’s GP or the mother’s GP; no information was provided that clarified what understanding the GP had about the current proceedings; no information was provided about what background material was provided to the GP in respect to the current dispute in the proceedings or the suggested role C Family Centre would take in assisting the parties and the children; and lastly there was no affidavit of the GP filed in the proceeding. The court does not give the mother’s retelling of a GP’s opinion that the services provided by C Family Centre are inappropriate any weight.

The court notes the reasons advanced by the mother with respect to her decision to move to City B (referred to in these reasons below) particularly around her employment and additional tax free income she obtains as a Armed Forces employee, and finds that any requirement that the parties equally contribute towards the costs of the children’s and parties engagement with C Family Centre and the cost of each party paying one half of the cost of airfares between Sydney and Melbourne could be met without financial hardship. The court further finds that C Family Centre should be provided with background material in that includes a copy of these orders, reasons for decision, a copy of the Family Reports dated 6 October 2022 and 4 March 2022 and a copy of the subpoenaed material produced by E Services.
The court views the Independent Children’s Lawyer’s proposed Order 6 (as amended) in combination with orders for the parties and the children attending upon C Family Centre as protection and ameliorating the risks associated with the father’s mental health, his anger issues and the state of the estranged relationship between the children and the father.
The court considers the views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
The most recent views of the children with respect to the father are contained at paragraphs 43 and 44 of the Family Report dated 6 October 2022:
43.When asked about [Mr Otero], [X] appeared reluctant to talk about him answering “I don’t know” to the majority of questions. When asked if he had positive memories of [Mr Otero], [X] said he did not. [X] said that he was scared of [Mr Otero], however he was unable to provide an example of what made him scared. When asked about spending time with [Mr Otero], [X] said that he did not want to spend time with him, but was unable to provide a reason for this. When asked about returning to Sydney, [X] responded by showing his two hands and pointed his thumbs to the floor.
44.[Y] (aged 6 years) impressed as a talkative, happy child whose manner and appearance was consistent with her chronological age. When asked if she knew why she was at the Registry, [Y] said that “If he shows up, I don’t know what is going to happen.” [Y] indicated that he was [Mr Otero]. [Y] indicated that she wanted to draw a picture. Whilst she was drawing she spoke about her recent birthday, her excitement about having a party for her next birthday and school. [Y] spoke about her friendships and her school. When asked about her family, [Y] said that her family is nice. She listed a number of family members including Nanna ([Mr H]’s mother), [Q] and [R] ([Mr H]’s children), Pop and [Ms S]. [Y] emphasised that there was “so much family.” When asked about [Ms Kasun], [Mr H] and [Mr Otero], [Y] replied for each that she did not want to talk about them. When asked about the Zoom calls with [Mr Otero], [Y] stated that she did not want to talk to him. She replied that she did not know why this was. When asked about spending time with [Mr Otero], [Y] replied “No.” When asked what the reason was for this, [Y] replied that she did not want to talk about it. [Y] indicated that she did not want to answer further questions and that she wanted to return to the childcare room.
The issue of the potential genuineness of children’s views was explored in cross examination of the Child Court Expert by counsel for the mother. The evidence of the Child Court Expert below was helpful in the court gaining some insight into the weight the children’s views ought to be given:
Mr O’Brien: So, you’re aware of the event that the mother asserts occurred at the day care centre; correct?
[Ms P]: ---Yes.
Mr O’Brien:If the children had witnessed that, that would be something which would be classified, presumably, as a traumatic event for them to witness, wouldn’t it?—
[Ms P]: -Yes.
Mr O’Brien:Even if the children hadn’t witnessed the mother being punched, but had witnessed the father laying lands on the mother during an argument about the children, that would have also been traumatic for them to witness; correct?---
[Ms P]: That’s correct.
Mr O’Brien:And if the youngest child recalls, rightly or wrongly, but recalls being hit by an open door when his father was reversing the car and knocked over, that would be something quite significant to a young child of that age, wouldn’t it?
[Ms P]: ---Yes.
Mr O’Brien:And that would engender negative feelings towards the parent who they perceived was the cause of that, wouldn’t it?
[Ms P]: ---That’s likely, yes.
Mr O’Brien:And it would cause perhaps a fear response in respect of that parent, wouldn’t it?
[Ms P]: ---It could, yes.
Mr O’Brien:And it could certainly be something that really does shape their views in these proceedings of the father in a negative way, couldn’t it?
[Ms P]: ---Yes, yes.
Mr O’Brien:And the children, since that event, with the exception of your office, haven’t spent any time with him, have they?
[Ms P]: ---No physical time, yes. No.
Mr O’Brien:So, it’s likely that introducing the children to the father is problematic due to this event that they have experienced, isn’t it?
[Ms P]: ---Yes.
The court was concerned by the evidence given by Mr H during cross examination (transcript, 9 Nov’ 2022 pages 326-327) that he and the mother had been holding ‘family meetings’ with the children prior to the zoom calls between the children and the father. Mr H’s evidence left the court questioning whether those meeting may have had the effect of reinforcing the children’s negative view of the father. While the evidence was concerning, it was not sufficient to allow the court to make a finding that the purpose or effect of the family meetings was to reinforce the children’s negative views of the father, or undermine the children’s relationship with him.
With respect to the weight the children’s view be given the Child Court Expert opined at paragraph 49 of her report that:
….The children each presented as strongly aligned with [Ms Kasun] and rejecting of a relationship with [Mr Otero], with both children stating that they did not want to spend time with him. Given the history of care and the length of time since the children have spent time with [Mr Otero], the children’s primary relationship would be with [Ms Kasun]. Given the children’s age and likely development stage combined with the length of time since they have spent time with [Mr Otero], it is recommended that limited weight be given to their views.
While the cross examination of the Child Court Expert by counsel for the mother was helpful in understanding the potential difficulty the father and children will face in their reintroduction the answers given by the Child Court Expert in cross examination above do not go as far as explaining why the children did not articulate such an experience during the Family Report interview process. In those circumstances the court was left accepting the Child Court Expert’s opinion that the children’s views be given limited weight.
The court notes the nature of the relationship of the children with the parents and with Mr H. The fractured nature of the children’s relationship with the father is well demonstrated by the Child Court Expert’s attempt to engage the children in an observation session with the father. That attempt is recorded at paragraph 45 of the Family Report that provides:
45.Observation of [X] and [Y] with [Mr Otero]. The children accompanied theCCE from the childcare to the observation room. [Y] entered the room first and immediately exited stating that she “wanted Mummy.” She walked away and waited in the hallway and appeared distressed, crying for a short time. [X] entered the room and also exited immediately. The CCE asked [X] if he wanted to play with [Mr Otero] and [X] angrily said “No.” The CCE returned the children to the childcare room.
By way of contrast, the observation session between the children and the mother and Mr H well demonstrate the strong and secure nature of their relationships that is recorded by the Child Court Expert at paragraph 47 of her report. In essence the children engaged happily in play with the mother and Mr H. The observation session as recorded demonstrated the strength of the loving relationship that exists between the children and the mother and Mr H.
Both the children’s views about their father, and the nature of their relationship with him, reinforced to the court the need for the parties and the children to engage in family therapy facilitated through C Family Centre as a means of normalising the children’s views of and their relationship with their father.
Despite there being some suggestion that the father failed to afford himself the opportunity to spend time with the children it is not a determinative or even important issue. In other words this is not case where it is necessary for the court making a finding as to the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the children; to spend time with the children and to communicate with the children.
Similarly this is not a case where the issue to be determined is the extent to which each of the children’s parents has fulfilled, or failed to fulfil, their obligations to maintain the children.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child, or other person (including any grandparent or other relative of the child), with whom they have been living, is an enormously significant issue. This is particularly so given the father’s application with respect to where the children should live and with whom they should live.
The effect of the separation of the children from the mother should they be required to live with the father in Sydney would be significantly detrimental to the children noting that the Child Court Expert suggested the children each presented as strongly aligned with the mother and rejecting of a relationship with the father. Similarly were the court to compel the mother to relocated with the children back to Sydney that change in circumstance would also be detrimental where the court accepts the Child Court Expert’s opinion above about the children’s alignment. In other words the children’s alignment and their negative views of the father would be reinforced were they forced by the court into the father’s care particularly where the Children are well aware of the issue of the father seeking their return to Sydney whether they live with the mother or live with him.
The Child Court Expert was clear in her opinion expressed at paragraph 89 of her first Family Report dated 4 March 2022 as to the effect of likely effect of any changes in the children’s circumstances where she stated:
89.[Mr Otero] proposed that the children move to Sydney, live with him and spend time with [Ms Kasun]. The children moving to live with the father would represent a significant change and disruption to their current living and school arrangements and the children are likely to experience this as distressing. Unless it is determined that the children are at unacceptable risk of harm, maintaining their primary residence with [Ms Kasun] would be the most beneficial to the children’s well-being, regardless of the location in which they live.
As well noted, the children are currently spending no time with the father. The likely effect of a change in that circumstance, where the children are supported to re-establish a relationship with the father supported by a therapeutic intervention by C Family Centre (in the form of family therapy) that would see the children remaining living primarily with the mother and then spend limited time during school term and block periods of time during school holidays, would not be detrimental, but rather such a change in circumstance would be beneficial to the children’s best interests.
The practical difficulty and expense of the children spending time with and communicating with the father where the children remain living in City B would be difficult. However the father is well employed in the Armed Forces and by virtue of the orders he seeks with respect to spending time with the children should they remain living in City B the court does not find that the difficulty or expense of travel for the father, and for the children by return air flight between City B and Sydney, or Melbourne and Sydney, will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis. The court considers that given the mother’s employment and tax free income as an Armed Forces employee that she would be able to fund half the cost of the supervision that is proposed by the Independent Children’s Lawyer of 2 three hour periods on a Saturday and Sunday at the end of each month over a 6 month period. Similarly the mother will be able to afford the half cost of the children’s return air flights between Melbourne and Sydney.
The capacity of the mother and of Mr H to provide for the needs of the children, including emotional and intellectual needs is not an issue in these proceedings. The court finds the mother and Mr H have that capacity.
Relying on answers given by the father during cross examination (court notes answers by father about his mental health difficulties, transcript 3 August 2022 pp.104-111) at paragraph 24 of the mother’s written submissions counsel for the mother put that:
24.At this stage, the Court is unaware of the precise nature of the Father’s mental health issues. The Court has two conflicting views from two treating psychiatrists; the Father opined during cross-examination that he is suffering from complex Post Traumatic Stress Disorder (PTSD); he has had suicidal ideation and has been in several mental health facilities as an inpatient in recent years; and he has had mental health issues since at least 2016. The lack of detail on this issue from the Father, being the person from whom these matters should be explained is disconcerting. (referencing omitted)
The court is not satisfied that the father currently has the capacity to provide for the needs of the children, including emotional and intellectual needs where his mental health is an issue that requires therapeutic intervention. The Independent Children’s Lawyer’s proposed Order 6 (as amended) will in the view of the court allow for a bolstering of the father’s mental health and in turn capacity, particularly where the father’s time is suspended should he fail to comply with the requirements contained within proposed Order 6 (as amended).
There is nothing in regard to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of parents and any other characteristics of the children that the court thinks are relevant.
The children are not Aboriginal and or Torres Strait Islander children.
This is not a case where either parent has a bad or lacking attitude towards the children, nor is this a case where the parents have shown themselves to be irresponsible parents.
There are arguments in this case about family violence and who did what to whom, particularly with respect to the incident at the children’s preschool and Mr H’s work. For the reasons set out above the court is not prepared to make findings that the father and or the mother did or did not perpetrate family violence on one another. The court does however find that the parties’ relationship with one another is an extremely poor and one where they lack civility and respect towards one another.
The court notes the Family Violence Order made in the New South Wales Local Court against the father for the protection of the mother. The inference that can be drawn is extremely limited (where no party sought production of the Local Court file) but extends to the police and the Local Court holding fears for the mother’s safety as a result of the father’s conduct. While the court does know the nature of the order the court does not know with any surety:
(1)the circumstances in which the order was made;
(2)about any evidence admitted in the proceedings for the order;
(3)whether any findings were made by the Local Court Magistrate in the proceedings;
(4)or of any other relevant matters in relation to the making of the Family Violence Order.
The court considers whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. The orders least likely to lead to the institution of further proceedings would of course be those sought by the mother where there would be no face to face time between the children and the father. However, simply preferring the mother’s orders because would be least likely to lead to the institution of further proceedings in relation to the children ignores their best interests in being afforded a right to a meaningful relationship with their father, subject to their needs being met and being kept safe. The court does not find it preferable to make the orders sought by the mother for no time. The mother seeks an order for sole parental responsibility. It is easy to determine that an order for equal shared parental responsibility is likely to see the parties in significant disagreement about issues affecting the children particularly with respect to X’s ADHD diagnosis. It is easy to foresee that requiring the parties to work together where they hold parental responsibility equally will be likely to lead to the institution of further proceedings.
There are other facts or circumstance that the court thinks relevant and that requires determination. Namely the father seeks that the mother cause the children to reside in the greater metropolitan Sydney Area within 28 days, and in the event that the mother refuses to relocate the children’s residence back to the greater Sydney metropolitan area that the children live with the father. The mother strenuously opposes moving the children back to Sydney or living with the father. The Independent Children’s Lawyer supports the mother’s position that the mother and children remain living in City B. The exploration of the issue by the Child Court Expert with the children demonstrates the children are well aware of the issue and are strongly opposed to moving back.
This is not a case about whether the mother should be entitled to move with the children to City B. That decision was made by a senior registrar at an interim hearing on 9 November 2021 when he determined to refuse the orders sought by the father (Interim Orders sought by father in his Amended Application filed 8 November 2021) that the children live with him and a recovery order be issued for the children to see them brought into his care in Sydney, after the mother had made a decision to relocate the children’s residence to City B, without notice to the father.
Instead of returning the children to Sydney and to the father’s care, the senior registrar ordered the children live with the mother, effectively cementing their relocation with the mother to City B.
The question to be determined is whether the court should order the children to relocate to the greater Sydney metropolitan area, and in the absence of the mother relocating their residence, the children then live with the father in Sydney.
No section of the Family Law Act specifically refers to the issue of relocation. Rather, each relocation case is considered in the context of the best interests of the children and whether the proposed arrangement would be reasonably practicable.

In the case of A v A: Relocation Approach (2000) FLC 93-035, the Full Court of the Family Court set out an approach to be used as a guide in determining parenting cases involving relocation. When considering parenting orders in the context of a relocation application by one parent, the case of A v A stands as authority for the following:
(1)That the issues of relocation and the best interests of the child must be considered as interdependent matters;
(2)A persuasive argument in support of or against, the proposed relocation does not need to be set out;
(3)The interests of both the relocating parent and the non-relocating parent must be evaluated in the context of the best interests of the child;
(4)The Court is not obliged to disregard the legitimate interests of the parents. However, where there is a conflict between the legitimate interest of the child’s parents, the paramount consideration of the child’s best interest interests must be given priority; and
(5)The parent seeking to vary the present arrangements and ultimately change the child’s place of residence bears the onus of satisfying the Court that the relocation is in the child’s best interests.
In the High Court decision in AMS v AIF [1999] HCA 26; 199 CLR 160; 73 ALJR 927; 163 ALR 501; (1999) FLC ¶92–852; 24 Fam LR 756 Kirby J held at 193:
Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada. It more closely conforms to the language of the Convention on the Rights of the Child. Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as FLA 1975 and FCA 1975 is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.
The topic of freedom of movement was discussed in the Full Court decision in Wagstaff & Wagstaff [2021] FedCFamC2F 507 where Wilson J held at 124:
Whatever might be the legal characterisation of the right the mother may possess to move freely, it must be subordinated by her parenting obligations under the Family Law Act. The best interests of the children are paramount. The legislation says as much in express terms.
It is helpful to consider the father’s application in the reverse, namely the father’s fall-back position, that the children live with him if they are not relocated to the greater Sydney metropolitan area by the mother.
For the reasons set out, noting the courts concerns with respect to the father’s mental health and his capacity, such that the children could be subjected to or exposed to abuse, neglect or family violence (without therapeutic intervention); the children’s views about their father where X told the Child Court Expert he did not have positive memories of the father and was scared of the father, while Y refused to discuss the father; where the nature of the relationship between the children and the father is one of estrangement, and so poor that the children refused to be observed in a session with the father such that the court has determined that the children and the father will need to engage in family therapy facilitated by C Family Centre, if the relationship between the children and the father is to be re-established; where the court has found the children spending time with the father be conditional on and subject to the following orders namely:
(a)That within 14 days the father shall attend upon his current mental health provider.
(b)The father shall do all things reasonably necessary to obtain a written report/letter from the abovementioned mental health provider as to whether the father requires further treatment including Anger Management Counselling and if so, the frequency of same and confirmation that the father is compliant with any treatment he made be undergoing with that mental health provider. The father shall provide the said mental health practitioner a copy of these orders, reasons for decision and a copy of the Family Reports dated 6 October 2022 and 4 March 2022. The report/letter shall acknowledge that the author has been provided with and read these orders, reasons for decision and the said family reports.
(c)On receipt of the report/letter referred to in Order 6(b) above, the father shall provide to the mother or her legal representative a copy of the report. The mother shall be and is authorised to communicate with the father’s mental health provider and request reports (not more than once every 6 month period) as to the father’s compliance with any treatment that is recommended by the nominated mental health provider.
(d)The father shall continue to be compliant with any treatment that is recommended by the nominated mental health provider.
(e)In the event the father is not compliant pursuant to Order 6(b) and Order 6(d) above, the father’s time shall be suspended until such time that he furnishes evidence of compliance with any treatment that is recommended by the nominated mental health provider.
the court finds that the order sought by the father, that provides, that the mother cause the children to reside in the greater metropolitan Sydney Area within 28 days and in the event that the mother refuses to relocate the children’s residence back to the greater Sydney metropolitan area that the children live with the father is not in the best interest of the children.
The court considers the parties’ arguments noting that a persuasive argument in support of or against, the proposed relocation does not need to be set out.
The mother provided evidence at paragraphs 114 – 122 in her affidavit on the topic of relocation and remaining in City B that are best summarised as:
(a)City B was “primarily chosen” by the mother as it could provide medical care treating X for ADHD,
(b)The mother and Mr H have “great job opportunities” in City B.
(c)The mother and Mr H have been able to remain as employees in the Armed Forces at City B that affords them a non-taxable income.
(d)The mother and Mr H have engaged in civilian employment in City B, namely Mr H as a tradesman, and the mother securing a position as an administrative officer in the T Company at City B.
(e)If the mother and Mr H had stayed in NSW they would have suffered financial hardship, would have been “posted out” regularly in the Armed Forces (in other words moved around from base to base) that would cause the children disruption.
(f)The mother and Mr H were no longer eligible for Armed Forces service accommodation and would need to pay rent.
(g)That the mother and Mr H have no family support to care for the children in NSW.
(h)Mr H grew up in City B and his “whole family” reside in City B.
(i)That the mother and the children have a “very close relationship” with Mr H’s family and that the children call Mr H’s parents “Nanna” and “Pop”.
(j)That the mother and Mr H have well settled accommodation in a 4 bedroom home with the children each having their own bedroom.
(k)That the children are well settled, with X being enrolled in Grade 1, and Y enrolled in Prep, at U School.
(l)That both children are involved in extra circular activities at City B that they enjoy, with X playing sports, and Y enrolled in hobby classes.
The one paragraph written submissions by counsel making argument on behalf of the mother on the topic of relocation were short but compelling where it was put:
68.In respect of the Father’s orders seeking the relocation of the children, it is in the children’s bests interests that they be permitted to continue to reside in Victoria. The Family Court Expert notes at [92] in her 4 March report that: “Moving back to Sydney will likely impact [Ms Kasun]’s employment and reduce her ability to access family support. She may experience anxiety and/or depression due to her reported experiences in her relationship with the father and this is likely to negatively affect her parenting ability. This will then negatively impact on the children’s wellbeing.”
Further in her 6 October 2022 report at paragraphs 59 and 60 the Family Consultant maintains this view and recommends that the children live with the mother and remain in City B. She states at paragraph 54 that such move is
‘likely to negatively impact the children given their presentation and the reported stability they have in school with their peers’; that the Father is seeking to prioritise his own needs over those of the children by seeking their return; and ‘moving the children from living with her is likely to negatively affect the children’s sense of safety and well-being.’ This is undoubtedly correct, and the Father’s orders for the children to relocate to Sydney ought be dismissed.
The Child Court Expert helpfully set out the competing interests of the parties regarding relocation and provides her opinions regarding the same as express at paragraphs 90 - 93 of her first Family Report dated 4 March 2022 where she stated:
90. [Mr Otero]’s proposal that the children return to live in Sydney appears to be prioritising his needs, rather than considering the impact another move would have on the children. The children continuing to live in [City B] will provide them with the opportunity to maintain their current schooling and social connections. [Mr Otero] and [Ms Kasun] are in disagreement if [City B] is able to provide support for the children’s medical needs. It is outside the scope of this assessment to determine if [City B] had adequate facilities for the children’s interventions if and when they need them. The children remaining to live in [City B] has the potential to negatively impact the children re-establishing a relationship with [Mr Otero]. [Mr Otero] reports that it would be difficult for him to travel to [City B] to facilitate spending time with the children. [Mr Otero] reported that not spending time with the children has a negative impact on his mental health and this is likely to continue and negatively affect his well-being. [Mr Otero] reported that he continues to access support for his mental health and this is recommended to continue.
91.If the children move to live in Sydney and [Ms Kasun] chooses to return to Sydney with them, this will likely provide for an increase in opportunities for the children to spend time with [Ms Kasun] and subsequently the opportunity for an improved relationship between the children and [Ms Kasun] . However, this may represent an unacceptable risk of harm to the children if there is ongoing conflict between [Mr Otero] and [Ms Kasun]. Due to [Mr Otero]’s expressed feelings towards [Ms Kasun] during interview and him continuing to minimise his actions contributing to the breakdown in the co-parenting relationship, there is concern that the children would be exposed to conflict in an arrangement such as this. If it is the case that the children continue to be exposed to conflict between their parents, then it may lead to social, physical and emotional problems for the children.
92.In the circumstances that [Ms Kasun] moves to Sydney if the children were required to move this may negatively affect [Ms Kasun]’s well-being. Moving back to Sydney will likely impact [Ms Kasun]’s employment and reduce her ability to access family support. She may experience anxiety and/or depression due to her reported experiences in her relationship with [Mr Otero] and this is likely to negatively affect her parenting ability. This will then negatively impact the children’s well-being. If [Ms Kasun] were to remain in [City B] and the children moved to live in Sydney this is likely to be experienced as distressing by the children due to their primary relationship being with [Ms Kasun]. The children would also be required to start a new school and engage in new social connections. An arrangement such as this is also likely to negatively affect [Ms Kasun]’s relationship with the children and this is likely to negatively affect [Ms Kasun]’s well-being and potentially increase her chance of experiencing psychological distress.
93.The children are not of an age where they would be able to travel to Sydney independently and travelling with an airline as unaccompanied minors will add an increase to the cost of travel. It is likely that the children would be teenagers before they are able to travel independently due to the requirements of the airlines in regards to children travelling alone. Whether or not the children remain living in [City B] or move to Sydney is likely to require Judicial determination. There are ways for the children to maintain their relationship with [Mr Otero] if they remain living in [City B], for example through telephone or video calls, through photographs and spending time during holiday periods.
The court takes into account the rights of the mother to freedom of movement particularly where Australia is not a country with a system of internal passports such that government or other permission is needed to move, but in circumstances where the best interest of the children remain paramount.
While the father would dearly like his children to live close in the hope that would help re-establish his relationship with the children, and that it will be more difficult for the father to maintain a meaningful relationship with the children if they live in City B as compared to Sydney, the arguments about the children and the mother and Mr H being well established and secure in City B are overwhelming. The court views the imposition of an order that would require the children to return to live in Sydney as counterproductive to the children’s relationship with the father where the mother and the children are strongly resistant to the idea of a return to Sydney. The disruption of the move including changing home, jobs, schools, the loss of friends for the children both at school and in the extracurricular activities would likely be blamed on the father and further entrench the children’s negative view of the father.
Once again and despite the father’s failings, the father was significantly insightful of the situation both he and the children found themselves in where he was recorded by the Child Court Expert at paragraph 26 of the second Family Report dated 5 October 20022 (below) as commenting on whether the mother moving back to Sydney with the children was realistic after the court had determined not to require the children to be returned to live in Sydney at the interim hearing on 9 November 2021 before a senior registrar:
He was also critical of the Court process, stating that he “met some bloke on Zoom, who wrote him off as a parent,” he clarified that [the senior registrar’s] decision in relation to the children was “not child focused” and that there was “very little accountability” to the children’s well-being. He emphasised that nothing has been well thought out and it is “too hard” for Mum ([Ms Kasun]) to move back. [Mr Otero] said that this was not a child focused decision. He stated that there are hundreds of pages of documents and no one has bothered to speak to the children. [Mr Otero] said that there is very little accountability to the children’s well-being.
The court finds that it is in the best interest of the children that they should remain living with the mother in City B.
Having regard to the considerations found at sections 60CC the court finds that it is not in the best interest of the children that the parents equally share parental responsibility. As such the court rebuts the presumption that the parents equally share parental responsibility. While the court finds the mother should hold sole parental responsibility, it does not mean that the mother should be free to make major long term decisions for the children without regard to the father’s views. To this end the orders sought by the Independent Children’s Lawyer, with respect to the mother’s consultation with the father, are appropriately in the best interest of the children.
The court easily finds that equal time and substantial and significant time (as defined at section 65DAA(3)) between the children and the father is not in the best interest of the children having had regard to the considerations at section 60CC. The court further finds that equal time or substantial and significant time is not reasonably practical when having regards to those matters found at section 65DAA(5) where:
(a)Sydney and City B, where the parents live, are too far apart to make equal time or substantial and significant time reasonably practical;
(b)The parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal time or substantial and significant time is so poor that such an arrangement is not reasonably practical; and
(c)The impact that an arrangement of equal time or substantial and significant time would have on the children (given their level of resistance to spending time with the father) would be detrimental such that an arrangement of equal time or substantial and significant time would not be reasonably practical.
It is in the best interest that the children live with the mother and it is in the best interest that the children begin a journey of working towards normalising a relationship with their father (assisted by C Family Centre) such that they can ultimately move to spending overnight time with the father and in particular block periods of time with the father during the school holidays. It is in the best interest of the children that their time be conditional on the father doing those things required of him in accordance with the ICL’s proposed Order 6 (as amended) as that order will bolster the father’s capacity to provide for the needs of the children and mitigate the risk of harm to the children.
For the reasons set out above the Court makes the following orders:

I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers.
Associate:
Dated: 8 May 2023

File number(s):	PAC 4142 of 2021
Judgment of:	JUDGE MYERS
Date of judgment:	8 May 2023
Catchwords:	FAMILY LAW – parenting proceedings.
Legislation:	Family Law Act 1975 (Cth), ss 60CC, 65DAA(3), 65DAA(5) Mental Health (Forensic Provisions) Act (NSW) s 32
Cases cited:	A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF [1999] HCA 26; 199 CLR 160; 73 ALJR 927 163 ALR 501; (1999) FLC ¶92–852; 24 Fam LR 756 Wagstaff & Wagstaff [2021] FedCFamC2F 507 Witham v Holloway (1995) 183 CLR 525
Division:	Division 2 Family Law
Number of paragraphs:	129
Date of hearing:	2-4 August 2022, 8-9 November 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Cohen
Solicitor for the Applicant:	Gonzalez & Co
Counsel for the Respondent:	Mr O’Brien
Solicitor for the Respondent:	Rafton Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Carter
Solicitor for the Independent Children's Lawyer:	Harb Lawyers

PAC 4142 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR OTERO Applicant
AND:	MS KASUN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MYERS
DATE OF ORDER:	8 MAY 2023